Judge orders IRS to come up with better explanation of missing Lerner e-mails

posted at 1:21 pm on August 15, 2014 by Ed Morrissey

The dog-ate-my-homework — er, excuse me, hard-drive-ate-our-emails excuse did just about as well in federal court as it would during an IRS audit. Judge Emmet Sullivan rejected the IRS’ response to the Judicial Watch complaint about missing e-mails from Lois Lerner and other IRS employees involved in the targeting scandal yesterday. Sullivan in effect took steps to conduct his own independent probe, issuing an order demanding specific answers — and demanding them by one week from today:

A federal judge asked the U.S. Internal Revenue Service for more information on efforts it made to recover missing e-mail from the computer of an agency official at the heart of a quarrel between Congress and the Obama administration over scrutiny of Tea Party organizations.

U.S. District Judge Emmet Sullivan’s order today giving the IRS until Aug. 22 to come up with further details on what it did to retrieve e-mail from the malfunctioning computer of Lois Lerner signals his dissatisfaction with the agency’s earlier explanation, contained in an Aug. 11 filing.

The order comes in a Freedom of Information Act lawsuit filed by the activist group Judicial Watch. The complaint seeks Lerner’s e-mail and other communications concerning the processing of applications for tax-exempt status.

“Asked” is a bit too generous. Legal Insurrection has the actual document from Sullivan, in which “asked” is replaced by “ORDERED” — caps in the original, although Bill Jacobson has added other emphasis and formatting:

MINUTE ORDER. In light of [26] the Declarations filed by the IRS, the IRS is hereby ORDERED to file a sworn Declaration, by an official with the authority to speak under oath for the Agency, by no later than August 22, 2014.

(2) provide additional information explaining the IRS’s policy of tracking inventory through use of bar code property tags, including whether component parts, such as hard drives, receive a bar code tag when serviced. If individual components do not receive a bar code tag, provide information on how the IRS tracks component parts, such as hard drives, when being serviced;

(3) provide information about the IRS’s policy to degauss hard drives, including whether the IRS records whose hard drive is degaussed, either by tracking the employee’s name or the particular machine with which the hard drive was associated; and

“ORDERED.” “Must.” “Speak under oath.” These are not really requests, and the time frame isn’t an expression of curiosity, either. Giving the IRS a single week to meet these demands after months of wrangling over Judicial Watch’s challenge implies that (a) Sullivan’s pretty convinced the IRS has these answers, which then suggests that (b) Sullivan’s getting angry over the IRS’ intransigence and opacity in dealing with the court. Either Judge Sullivan has run out of patience, or he wants the IRS to think he has.

In an extraordinary step, U. S. District Court Judge Emmett Sullivan has launched an independent inquiry into the issue of the missing emails associated with former IRS official Lois Lerner.

Previously, Judge Sullivan ordered the IRS to produce sworn declarations about the IRS email issue by August 11. Today’s order confirms Judicial Watch’s read of this week’s IRS’ filings that treated as a joke Judge Sullivan’s order.

Judge Sullivan, in his earlier ruling, appointed Magistrate Judge John M. Facciola to manage and assist in discussions between Judicial Watch and the IRS about how to obtain any missing records from other sources. Magistrate Facciola is an expert in e-discovery, and authorized Judicial Watch to submit a request for limited discovery into the missing IRS records after September 10.

The demand to produce testimony under oath in court sets up an interesting moment, too. The IRS has provided conflicting answers to Congress about the status of e-mail and the ongoing efforts to retrieve the records of Lerner and others. At different times, the IRS has told the House Ways and Means and Oversight committees that they had the records, that the records were lost, that some of the records may still be retrievable, and that they never knew Lerner had a Blackberry — even though some of her extant communications showed clearly that she used it for e-mail. How will the IRS resolve all of those contradictions in sworn testimony, under penalty of perjury?

We’ll have to wait until at least next week to see. Whatever they come up with is likely to differ yet again from what’s come before it, and it’s doubtful that will make Judge Sullivan any happier than he is at the moment.

I still think the IRS will run out the clock for as long as possible, given that the likelihood of Lerner heading directly to jail without passing Go and collecting $200 is increasing. That way, if it’s near to the end of Obama’s second term (assuming he doesn’t run for a third!), he can just pardon her and say that it’s unfair to throw an innocent, upstanding citizen of the world community like Lois Lerner into prison because of racist, fear-mongering Tea Partier claims.

Oh, and if the Lerner story continues into the 2016 election (which begins much, much earlier), the media can shout “DISTRACTION!” as usual any time a Democrat scandal comes up.

But, But IRS DID NOTHING WRONG according to smart people in the media like John Steward and the rest of them. This Judge must be Racist or something. No one working for the government is ever corrupt that is why they should be in charge of EVERYTHING. /s

And if it extends beyond, that is a gamble, she is in jail…I see a plea in my crystal ball…

right2bright on August 15, 2014 at 1:36 PM

But if a Republican like Cruz manages to win the White House in 2016? The media will almost reflexively lambast a hypothetical Cruz Administration for abusing its victory and newfound power for political means by going after a Democrat.

Shades of “Hon. John Sirica” in the early days of the Watergate scandal. Now, if someone from inside the IRS would just pen a “James McCord” letter to the judge exposing the higher-ups and their wrongdoing, we can get somewhere.

Doesn’t that pen only apply to convicted persons? Not likely anyone will be convicted before 2017.

wifarmboy on August 15, 2014 at 1:49 PM

Not Necessarily. Ford pardoned Nixon even though he had not even been indicted. Nixon got a full pardon for all offenses against the United States in order to put the Watergate Scandal behind all concerned.

Someone will be quietly letting Judge Sullivan know that the NSA has records that might be embarrassing to him if they “leaked” out. Meanwhile, the IRS/OSHA/FBI/EEOC/Etc will be visiting family members and friends to check up on compliance with a slew of obscure but serious federal regulations.

Now, if someone from inside the IRS would just pen a “James McCord” letter to the judge exposing the higher-ups and their wrongdoing, we can get somewhere.

ugottabekiddingme on August 15, 2014 at 1:52 PM

Well it sure as heck isn’t going to be a Richard Windsor letter but one ignored scandal at a time. I still think that the “good stuff” for Lerner is sitting out there under a fake e-mail account of her own.

Given that from day one when I heard the original excuse that the IRS has pretty much f*cking lied through their collective(ist) a$$es, I am pretty impressed the judge has exercised this level of “patience.”

Those who would smugly flat-out lie to my face and blatantly break the law would consider himself lucky to walk away with just a broken nose – especially in light of the number of people whose lives have been severely disrupted by IRS inquisitions.

Frankly, I think the judge should have tossed a few in prison until the truth came out.

Or, he can send them to St. Louis and let the mobs have something to vent their rage upon.

Well, we’ll see. A real ‘expert in e-discovery’ won’t buy the [email protected] that the emails existed only on LL’s hard drive and nowhere else. He’ll know there’s email servers with backups and probably journaling.
He’ll know how to find the systems administrators directly responsible for those email servers, and the questions to ask them under oath. Either they’ll find the backups or they’ll identify who ordered them to not run them or to destroy them.

Lerner is, by far, not the only person who is in increasing jeopardy over the cover-up, obfuscation, and criminal violations of privacy / federal records act. Steven Miller, former Commissioner is at risk as is his former CoS, Nicole Flax. The current hack, Koskinen is at risk as is every Chief Counsel since 2010. The shulbs who are going to be replying, under oath, are going to be at risk – and the same with any IT personnel who will be named.

The best that the WH / Admin / IRS can hope for at this point is that the cover-up, obfuscation, and criminal violations are limited to within those in the IRS – that there is no break in the wall pointing to the WH political side or the WH Chief Counsel’s office (as I personally believe exist).

There will be indictments – and the ‘True the Vote’ and Judicial Watch cases will be the one’s that bring this forward.

But I entirely expect that the WH will be offering pardon’s wholesale on this…. it’s how they will maintain as much of the omerta as possible.

Good news, but just some context on court orders. The phrase “ORDERED” in all caps does not denote anger. It’s just the common way court orders are type dup. Some courts use old timey language like , ORDERED, ADJUDGED and DECREED.

It’s significant the judge ordered the IRS to provide information under oath, but the text of the order itself does not reveal much about the Judge’s state of mind.

Why does this matter? The judge is a federal judge. All the guys providing enforcement for federal judicial orders work for Obama, don’t they?

Kohath on August 15, 2014 at 2:01 PM

wiki

On June 16, 1994, Judge Sullivan was appointed by President Bill Clinton to serve as United States District Judge for the District of Columbia.

But hold the phone…

Sullivan was appointed by President Reagan to the Superior Court of the District of Columbia on October 3, 1984. On November 25, 1991, Sullivan was appointed by President George H. W. Bush to serve as an Associate Judge of the District of Columbia Court of Appeals.

Lerner is, by far, not the only person who is in increasing jeopardy over the cover-up, obfuscation, and criminal violations of privacy / federal records act. Steven Miller, former Commissioner is at risk as is his former CoS, Nicole Flax. The current hack, Koskinen is at risk as is every Chief Counsel since 2010. The shulbs who are going to be replying, under oath, are going to be at risk – and the same with any IT personnel who will be named.

The best that the WH / Admin / IRS can hope for at this point is that the cover-up, obfuscation, and criminal violations are limited to within those in the IRS – that there is no break in the wall pointing to the WH political side or the WH Chief Counsel’s office (as I personally believe exist).

There will be indictments – and the ‘True the Vote’ and Judicial Watch cases will be the one’s that bring this forward.

But I entirely expect that the WH will be offering pardon’s wholesale on this…. it’s how they will maintain as much of the omerta as possible.

Athos on August 15, 2014 at 2:12 PM

I suspect that ALL scandals lead to Valerie Jarrett, since she is Barry’s brain. As he slides into full-retirement I expect her power to only grow.

Aaron Signor, an IRS technician that looked at Lerner’s hard drive in June 2011, said in IRS court filings that he saw no damage to the drive before sending it off to another IRS technician, leading some in the media to suggest that the lost emails scandal is basically over. But Signor’s statement, issued in response to the Judicial Watch lawsuit, does not jibe with sworn congressional testimony.

The Daily Caller reported that Lerner’s hard drive was “scratched” and then “shredded,” according to a court filing the IRS made to the House Committee on Ways and Means.

The IRS chiefs actually believed than when they told their subordinates to wipe out all incriminating evidence those subordinates actually did so.

The subordinates know full well their bosses will throw them to the dogs at the first sign someone might get held accountable. I promise you that one of those low level employees has all the information as an insurance policy and will hang their faithless bosses when the crunch time comes.

the IRS is hereby ORDERED to file a sworn Declaration, by an official with the authority to speak under oath for the Agency, by no later than August 22, 2014.

The rubber is about to meet the road.

Barky’s LSM is going to have to rev up the distractions even higher than they are currently running – and they have quite a tinderbox of stories to work with. I’d put my money on major race riots in the streets, but ISIS, Ukraine, Ebola or Gaza could jump out further as well.

“we were ordered to destroy the emails”
that’s about the only answer that really will settle this thing.

Dino V on August 15, 2014 at 1:24 PM

Um, no – the Nurenburg Defense is not recognized in US Courts.

Additionally, there are express provisions in the US Code against such things, and moreso within the IRS Code because of the sensitivity of the information that the IRS deals with. Complying with an order to destroy emails outside of the normal data-retention specifications makes that person complicit. That means jail time, if convicted.

It’s also why the judge demands testimony under oath. The IRS better get that right, or they face charges of criminal perjury. Which also means jail time, if convicted.

The instruction appears significant for several reasons: First, the email to be deleted included an exchange between key White House officials and CMS officials. Second, the email was dated October 5, 2013, five days into the disastrous launch of HealthCare.gov. Third, federal law requires federal officials to retain copies of –not delete– email exchanges. And fourth, the document to be deleted is covered under Congressional subpoena as well as longstanding Freedom of Information requests made by members of the media (including me).

This, as I noted in that thread, is to me a smoking gun that the actions of HHS, the IRS, the EPA, the DoJ, the FEC, and other Executive Branch departments and agencies are part of a coordinated (from the WH) action to cover-up, obfuscate, and evade any outside oversight and scrutiny of their illegal actions and abuses of power.

This comes from the WH – the political side, the Chief Counsel, and or most likely from Obama’s inner circle (VJ) or Obama himself – well at least before he decided to check out as King Lame Duck I.

This is the ultimate reality soap opera. You can ignore for a year and come back and it is no closer to resolving issues than it was before. Truly the wheels of justice are moving slow, or stopped or going backwards!!

One thing I have not heard throughout all of the talk of the lost emails – if Lois Lerner sent someone an email, it should still be in the RECEPIENT’S mailbox. If someone sent her an email, it should be in the sender’s “Sent Items”. They should be able to recover a lot of her correspondence this way. Has anyone suggested it? Not that I’ve seen.

Team SCOAMT had hoped to wait until 11/2/2016 (the day after the 2016 election) to make public the mass pardons of itself. Now, I wonder whether they’ll be able to make it to 11/5/2014 (the day after the 2014 election) before having to announce the first of the pardons.

One thing I have not heard throughout all of the talk of the lost emails – if Lois Lerner sent someone an email, it should still be in the RECEPIENT’S mailbox. If someone sent her an email, it should be in the sender’s “Sent Items”. They should be able to recover a lot of her correspondence this way. Has anyone suggested it? Not that I’ve seen.

grahampowell on August 15, 2014 at 3:16 PM

It only works if (a) you know exactly who Lerner corresponded with and (b) if that entity is a government entity.

They can probably all plead the 5th, unless the judge grants immunity from prosecution.

I don’t think a court order can be used to deprive a person of their right against self-incrimination.

The response to the court order could be rather interesting and informative, even if the judge doesn’t get the information demanded (or maybe especially if the judge doesn’t get the information demanded).

For all of the commenters talking about pardons and such. Obama CANNOT pardon somebody that HAS NOT been convicted of a crime. So far, Lerner has not been convicted of anything and neither has anyone else.

If that is the case come 2017, and The Repubs take the White House, many people in Oblamers administration are going to be up sh!t creek without a paddle.

The judge ordered the IRS! What if no one at the IRS will come forward and “speak under oath for the Agency.” What will the judge do? Put the building in jail until the “IRS” comes up with the info. Also who will enforce his orders if the judge picks someone at the IRS to respond, Eric Holder.

IRS’s Jug eared minions are just laughing at us going nener nener nener.